Evidence

Question 1

How are facts proved, and what evidence is typically needed?

Answer 1

Facts are proved by evidence.
Evidence is typically needed for liability quantum and defence.

Question 2

What is direct evidence?

Answer 2

Evidence of the witness who has perceived the relevant facts or the production of a document which may be the subject to a legal dispute
e.g., an eyewitness to an RTA.
e.g., an executed lease

Question 3

What is circumstantial evidence?

Answer 3

Evidence which does not directly establish a fact but allows the court to decide whether a certain fact did exist.
Deductions can be made from generalization about human behavior.

Question 4

What are the types of evidence?

Answer 4

• Documentary evidence.
• Witness Evidence (Fact or opinion).
• Expert opinion evidence.

Question 5

What part of the CPR deals with witness evidence?

Answer 5

Part 32 and Part 33

Question 6

What part of CPR deals with expert evidence?

Answer 6

Part 35

Question 7

What is res ispsa loquiter?

Answer 7

Let the facts speak for themselves.
Court can draw an inference that the defendant was negligent, where the evidence indicates that as matter of common sense, the facts proved are more consistent with negligence on the part of the defendant than with other causes.

Question 8

When can res ipsa loquiter be used?

Answer 8

An unexplained occurrence, which would not have ordinarily occurred without negligence on the part of someone, and the circumstances point to the negligence being that of the defendant rather than that of any other person.

Question 9

What does res ipsa loquiter not apply?

Answer 9

• There is no evidence to support an inference of negligence.
• There is a possible non-negligent cause of the injury.
• The cause of an accident is known.

Question 10

s11(1) Civil Evidence Act 1968

Answer 10

Burden of proof is reversed.
If a personal has been convicted of a criminal offence this is deemed to be proof of the offence unless the contrary is proved.

Question 11

What type of evidence does a lay witness give?

Answer 11

Factual evidence, and only sometimes opinion evidence.

Question 12

When can a lay witness give opinion evidence?

Answer 12

Where the witness is in a better position that the court to form an opinion.
e.g., evidence of the speed of a vehicle, evidence of identity, evidence that a person was drunk.

Question 13

What is evidence in chief?

Answer 13

The main source of evidence which that party can rely on from the witness at trial.

Question 14

In the fast and multi-track, what is used as evidence in chief?

Answer 14

A witness statement (or affidavit) served in advance.

Question 15

What is a witness statement?

Answer 15

A written statement signed by a person which contains the evidence which that person would be allowed to give orally.

Question 16

What must all witness statements contain?

Answer 16

A statement of truth - confirming the maker of the statement has an honest belief in the truth in the statement, and is aware that contempt of court can be brought.

Question 17

Who can sign a witness statement?

Answer 17

The legal representative, if they are represented.
If not the individual.

Question 18

What is a witness summary?

Answer 18

A summary of the evidence that the witness is expected to give.

Question 19

When is a witness summary used?

Answer 19

The witness is not traceable; or
The whereabouts of the witness are known, but they are not cooperating in giving a statement; or
The witness has given a verbal statement but failed to sign a written statement.

Question 20

What is the consequence if a witness statement is not served, or not served on time?

Answer 20

Automatic sanction applies - The witness cannot give evidence orally at trial.
Party in breach must apply to the court for relief.

Question 21

What are the usual timescales for exchange of witness statements?

Answer 21

Small claims - 14 days before hearing (if permitted).
Fast track usually 10 weeks before the hearing.
Multi-track - court will determine.

Question 22

What is the basis of a witness of facts oral evidence?

Answer 22

The witness statement.
Can only give evidence in relation to new matters with the permission of the court.
Court must be satisfied there is a good reason, for example, statement failed to deal with important issues.

Question 23

What is the typical process of oral evidence?

Answer 23

1. Witness sworn in.
2. Evidence in chief - Witness confirms truth of their witness statement. Calling party asks questions with court permission.
3. Cross-examination
4. Re-examination (if permitted).
5. Judge’s questions.

Question 24

If a witness refuses to attend court, what can be done?

Answer 24

Form N20 Witness Summons should be issued and served for trial.
Must be served at least 7 days before hearing.
An address in the UK for the witness is required.

Question 25

If a witness does not respond to a valid witness summons, what is the consequence?

Answer 25

County Court - Fine
High Court - Contempt of court.

Question 26

What should be done if a witness is to give unfavorable evidence?

Answer 26

Should not be called, and other witness used instead.

Question 27

What can you do if a witness is unwilling to tell the truth on behalf of the party calling them?

Answer 27

Ask judge to declare witness as hostile.
Cross-examine them on the facts of the case.
With permission of the court prove the witness has made a previous inconsistent statement (compared to previous written or oral submissions).

Question 28

What type of evidence do expert witnesses give?

Answer 28

Opinion evidence - inferences are drawn from their conclusion of the facts, on matters within their field of specialization, rather than on matters they have seen directly.

Question 29

When can a witness be called under S3 Civil Evidence Act 1972?

Answer 29

An expert can only be called to given their opinion, on any relevant matter on which they are qualified to give their opinion.

Question 30

What is the position of an expert report obtained before proceedings are commenced?

Answer 30

Protected by litigation privilege, where it is prepared for the purpose of contemplated or pending civil action, until it is served.
Once served it is no longer privileged and can be relied upon by any party (even the opposition).

Question 31

What is a treating expert?

Answer 31

A healthcare professional who has treated the witness.

Question 32

What are the key differences between a treating witness and part 35 expert witness?

Answer 32

Treating experts:
- Give evidence as a witness of fact (not opinion).
- As a factual witness do not require court permission.
- Primary duty is to claimant, and governed by professional ethics (not to the court).
- Records are prima facie disclosable in proceedings.

Question 33

What is the duty of an expert witness under Part 35?

Answer 33

Duties of an expert is to help the court on matters within their expertise, in understanding any matter of art or science falling beyond that which can be expected of the trial judge. on matters within their expertise.
Duty overrides any obligation to the party instructing the expert or paying the expert’s fees.

Question 34

How is expert evidence restricted?

Answer 34

Court is under a duty to restrict expert evidence to that which is reasonably needed to resolve the proceedings.
Court’s permission is needed to put in evidence an expert’s report, or to call a witness to oral evidence at trial.

Question 35

What expert evidence is permitted on the different tracks?

Answer 35

Small claims track - generally not permitted.
Fast-track - Oral expert evidence limited to two experts, and one expert per field in relation to any expert field.
Multi-track - No specific limit, but still restricted to what is reasonably necessary.

Question 36

What is the presumption for witnesses?

Answer 36

A single joint expert should be instructed.

Question 37

What is the rule for use of single joint experts in the fast track?

Answer 37

Court must direct SJE unless good reason not to.
SJE usually used for issues of liability and quantum, as issues are of relatively modest value.

Question 38

What is the rule for use of single joint experts in the multi-track?

Answer 38

Court encouraged to give directions for an SJE on appropriate issues unless there is good reason not to do so.
SJE rarely used on issues of liability, as claim is of significant value.
SJE used on quantum.

Question 39

When is use of a single party expert justified?

Answer 39

• There are several recognized school of thoughts;
• The issues are very complex;
• The issues are important to the likely outcome of the case;
• The value of claim is high, so it would not be disproportionate.
• Experts were instructed before proceedings began, and it would be more cost-effective to continue.

Question 40

How is single-joint expert usually instructed?

Answer 40

Agreed by the parties.
Instructed by joint letter of instructions.
If cannot be agreed, court may provide directions for selection (parties to produce a list, or chosen by external person or organisation).

Question 41

What is the usual process when a unilateral expert is used?

Answer 41

1. Expert proposed in directions questionnaire is used.
2. Reports usually exchanged simultaneously, but sequential disclosure can be ordered (other party can then decide whether or not to instruct their own).
3. When evidence is not agreed between experts, a without prejudice meeting should be held with the experts only present.
4. Experts create a joint statement to confirm the issues, they agree, disagree, and the reasons for any disagreement.

Question 42

If a expert produces an unfavourable report, what can be done, and which approach is best?

Answer 42

1. Raise questions to the expert within 28 days of receipt to clarify their report; or
2. Ask the court permission to obtain an alternative report or appoint a new expert.
   Court is unlikely to agree to a new report, as it produce disproportionate costs, and the unfavourable report may still be disclosable.

Question 43

What can be done if an expert witness is unwilling to comply?

Answer 43

Court should be approached for further directions.
Court may remove expert and appoint a new one.
Court may make a non-party costs order under S51 Senior Courts Act 1981 on application.

Question 44

What justification can be relied upon for seeking expert oral evidence at trial?

Answer 44

• The expert oral evidence is likely to have an impact on the outcome of the case;
• The expert oral evidence will assist the judge;
• There is a risk of injustice if the expert evidence is not tested trial.
• The cost of expert oral evidence is not disproportionate.

Question 45

What steps need to be taken to rely on expert evidence or for an expert to give oral evidence at trial?

Answer 45

Permission from the court should be sought in the Directions Questionnaire/Pre-trial checklist.

Question 46

What is the position of costs for a single joint expert?

Answer 46

Pre-Action Conduct and Protocol - Fees are paid equally by the parties, but costs of asking questions, paid by the by the party asking the question.
Pre-Action Protocol for PI claims - Cost of report payable by claimant, but cost of asking questions paid by the party asking the question.

Question 47

What is the process of choosing a joint expert under the Pre-Action Protocol for Personal Injury Claims?

Answer 47

1. Claimant proposes a list of nominations to the defendant.
2. Defendant can object to any or all.
3. Claimant can instruct any witness the defendant has not objected to.
4. If defendant objects to all, defendant can choose their own witness.
5. Court will decide later if any party has acted unreasonably.